HAYNES v. OWENS et al
ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by ERIK ESTRADA HAYNES and ORDER Directing Service on Defendants Brian Owens and Shevondah Fields. The Georgia Department of Corrections is not construed to be a defendant in this case and should be terminated from the docket. Ordered by US Mag Judge Stephen Hyles on 9/23/13. (AGH)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ERIK ESTRADA HAYNES,
BRIAN OWENS, et al.,
CASE NO. 5:13-CV-339-MTT-MSH
42 U.S.C. § 1983
Plaintiff Erik Estrada Haynes has filed a pro se civil rights complaint under 42
U.S.C. § 1983, while he was confined at Smith State Prison. Plaintiff also seeks leave to
proceed without prepayment of the $350.00 filing fee or security therefor pursuant to 28
U.S.C. § 1915(a). Based on his submissions, the undersigned finds that Plaintiff is
currently unable to pre-pay the entire filing fee. Plaintiff’s Motion to Proceed in forma
pauperis (ECF No. 5) is thus GRANTED.
This does not mean that the filing fee is waived. Plaintiff is still required to
eventually pay the full amount of the $350.00 filing fee using the payment plan described
in 28 U.S.C. § 1915(b). The filing fee is not refundable, regardless of the outcome of
Plaintiff’s case, and Plaintiff is responsible for paying the entire filing fee even if his
lawsuit is dismissed prior to service.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial
screening of a prisoner complaint “which seeks redress from a governmental entity or
officer or employee of a governmental entity.” Section 1915A(b) requires a federal court
to dismiss a prisoner complaint that is: (1) “frivolous, malicious, or fails to state a claim
upon which relief may be granted”; or (2) “seeks monetary relief from a defendant who is
immune from such relief.”
A claim is frivolous when it appears from the face of the complaint that the factual
allegations are “clearly baseless” or that the legal theories are “indisputably meritless.”
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint fails to state a claim
when it does not include “enough factual matter (taken as true)” to “give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests[.]” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (noting that “[f]actual allegations must
be enough to raise a right to relief above the speculative level,” and that the complaint
“must contain something more . . . than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action”) (internal quotations and citations
omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that
“threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”).
In making the above determinations, all factual allegations in the complaint must
be viewed as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover,
“[p]ro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998).
In order to state a claim for relief under section 1983, a plaintiff must allege that:
(1) an act or omission deprived him of a right, privilege, or immunity secured by the
Constitution or a statute of the United States; and (2) the act or omission was committed
by a person acting under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579,
1581 (11th Cir. 1995). If a litigant cannot satisfy these requirements, or fails to provide
factual allegations in support of his claim or claims, then the complaint is subject to
dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming the
district court’s dismissal of a section 1983 complaint because the plaintiffs factual
allegations were insufficient to support the alleged constitutional violation). See also 28
U.S.C. § 1915A(b) (dictating that a complaint, or any portion thereof, that does not pass
the standard in section 1915A “shall” be dismissed on preliminary review).
In his complaint, Plaintiff sues Brian Owens and Shevondah Fields alleging that
his constitutional right to eat a vegan diet—which he is on due to his religious beliefs—
has been violated. Although he includes the Georgia Department of Corrections in the
caption of the action, he does not include it in the body of his complaint under “Parties”
and makes no specific allegations against the Department in his “Statement of Claim.”
(Compl. 4; ECF No. 1.) Therefore, the Georgia Department is not construed herein to be
a party defendant to this action. Plaintiff seeks compensatory damages in the amount of
$150,000 to “make up for the physical harm that was caused by the infection from H
Pyloria and severe weight loss.” Construing Plaintiff’s allegations in his favor, the Court
concludes that Plaintiff has alleged colorable constitutional and statutory claims against
the Defendants. See Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
2000cc-1 (2004). Accordingly, it is hereby ORDERED that service be made on Brian
Owens and Shevondah Fields, and they file an Answer or such other response as may be
appropriate under Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1915, and
the Prison Litigation Reform Act.
Defendants are reminded of the duty to avoid
unnecessary service expenses, and of the possible imposition of expenses for failure to
waive service pursuant to Rule 4(d).
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall at all times keep the clerk of
this court and all opposing attorneys and/or parties advised of their current address.
Failure to promptly advise the Clerk of any change of address may result in the dismissal
of a party’s pleadings filed herein.
DUTY TO PROSECUTE ACTION
Plaintiff is advised that he must diligently prosecute his complaint or face the
possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil
Procedure for failure to prosecute. Defendants are advised that they are expected to
diligently defend all allegations made against them and to file timely dispositive motions
as hereinafter directed. This matter will be set down for trial when the Court determines
that discovery has been completed and that all motions have been disposed of or the time
for filing dispositive motions has passed.
FILING AND SERVICE OF MOTIONS,
PLEADINGS, DISCOVERY AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and
correspondence with the Clerk of Court. A party need not serve the opposing party by
mail if the opposing party is represented by counsel.
In such cases, any motions,
pleadings, or correspondence shall be served electronically at the time of filing with the
Court. If any party is not represented by counsel, however, it is the responsibility of each
opposing party to serve copies of all motions, pleadings, and correspondence upon the
unrepresented party and to attach to said original motions, pleadings, and correspondence
filed with the Clerk of Court a certificate of service indicating who has been served and
where (i.e., at what address), when service was made, and how service was accomplished
(i.e., by U.S. Mail, by personal service, etc.).
Plaintiff shall not commence discovery until an answer or dispositive motion has
been filed on behalf of the defendants from whom discovery is sought by the plaintiff.
The Defendants shall not commence discovery until such time as an answer or dispositive
motion has been filed. Once an answer or dispositive motion has been filed, the parties
are authorized to seek discovery from one another as provided in the Federal Rules of
Civil Procedure. The deposition of the Plaintiff, a state/county prisoner, may be taken at
any time during the time period hereinafter set out provided prior arrangements are made
with his custodian. Plaintiff is hereby advised that failure to submit to a deposition
may result in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil
IT IS HEREBY ORDERED that discovery (including depositions and
interrogatories) shall be completed within 90 days of the date of filing of an answer or
dispositive motion by the defendant (whichever comes first) unless an extension is
otherwise granted by the court upon a showing of good cause therefor or a protective
order is sought by the defendants and granted by the court. This 90-day period shall run
separately as to Plaintiff and each Defendant beginning on the date of filing of each
Defendant’s answer or dispositive motion (whichever comes first). The scheduling of a
trial may be advanced upon notification from the parties that no further discovery is
contemplated or that discovery has been completed prior to the deadline.
Discovery materials shall not be filed with the Clerk of Court. No party shall be
required to respond to any discovery not directed to him/her or served upon him/her by
the opposing counsel/party. The undersigned incorporates herein those parts of the Local
Rules imposing the following limitations on discovery: except with written permission
of the court first obtained, interrogatories may not exceed TWENTY-FIVE (25) to each
party, requests for production of documents and things under Rule 34 of the Federal
Rules of Civil Procedure may not exceed TEN (10) requests to each party, and requests
for admissions under Rule 36 of the Federal Rules of Civil Procedure may not exceed
FIFTEEN (15) requests to each party. No party shall be required to respond to any such
requests which exceed these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
The Court shall not consider requests for dismissal of or judgment in this action,
absent the filing of a motion therefor accompanied by a brief/memorandum of law citing
supporting authorities. Dispositive motions should be filed at the earliest time possible,
but in any event no later than thirty (30) days after the close of discovery unless
otherwise directed by the court.
DIRECTIONS TO CUSTODIAN OF PLAINTIFF
In accordance with the Prison Litigation Reform Act, Plaintiff’s custodian is
hereby directed to remit to the Clerk of this Court each month twenty percent (20%) of
the preceding month’s income credited to Plaintiff’s inmate account until the $350.00
filing fee has been paid in full, provided the amount in the account exceeds $10.00.
Transfers from Plaintiff’s account shall continue until the entire filing fee has been
collected, notwithstanding the earlier dismissal of Plaintiff’s lawsuit.
PLAINTIFF’S OBLIGATION TO PAY FILING FEE
If Plaintiff is hereafter released from custody, he shall remain obligated to pay any
remaining balance due of the above filing fee; Plaintiff shall continue to remit monthly
payments as required by the Prison Litigation Reform Act. Collection from Plaintiff of
any balance due by any means permitted by law is hereby authorized in the event
Plaintiff fails to remit payments.
SO ORDERED, this 23rd day of September, 2013.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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